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Russia: Countdown towards guardianship law reform

22 August 2012

22 August 2012, Budapest and Moscow. As we announced in an information bulletin, on 27 June 2012 the Russian Constitutional Court held that the current law depriving people of legal capacity is incompatible with the rights guaranteed by the Constitution because it allows only plenary guardianship (full deprivation of legal capacity) and does not allow for a determination of the individual’s actual capacities. The law needs to be changed by the end of this year.

The State Duma in Moscow“Although the judgment does not outlaw plenary guardianship nor specify the nature of the law reform, it is clear that the parliament must change the law,” said Lycette Nelson, MDAC Litigation Director, “The new law must establish supportive measures to enable people to exercise their legal capacity, as set out in the UN Convention on the Rights of Persons with Disabilities.”

MDAC and partner organisations will build on the reforms ordered by the Court to advocate for a more thorough examination of Russia’s compliance with the CRPD in the consideration of any new legislation.

MDAC helped Ms Delova to take her case to court in 2008, where she argued that depriving her of her legal capacity in court proceedings which she had not taken part was unfair. In 2009, MDAC was successful in having the proceedings re-opened for Ms. Delova to take part and to present new expert evidence. In the new proceeding in 2010, the evidence showed that she was able to manage her small pension and other everyday affairs. However, the judge in the case could not order anything but full guardianship since the law did not allow any alternatives. Ms. Delova was placed under the guardianship of the social care institution in which she lives, raising clear conflict of interest, a situation pointed out in an MDAC’s 2007 “Guardianship and Human Rights in Russia” report. MDAC appealed the decision on behalf of Ms. Delova but the appeal was dismissed. MDAC then appealed to the Constitutional Court to challenge the constitutionality of the law under which Ms. Delova was deprived of her legal capacity.

Although the Constitutional Court referred to the UN Convention on the Rights of Persons with Disabilities, which Russia has ratified, it did not examine whether the law complies with the CRPD. Particularly, it did not question the constitutionality of restrictions on legal capacity generally. Instead, it found that it is in accordance with the Constitution for the law to place under guardianship people with psycho-social or intellectual disabilities who, because of their disabilities, cannot “fully understand the significance of their acts or control them.” It went on to find that plenary guardianship as the sole option is unconstitutional because it is overly restrictive and not proportional to the aim it seeks to achieve.

The judgment, therefore, does not mean that people under guardianship will have their legal capacity restored, but that the legislature must develop alternatives that allow courts to assess a person’s capacities to perform certain activities rather than the current blanket approach. The Court gave the legislature until 1 January 2013 to pass new legislation to implement the judgment. In addition, the Court noted that Ms. Delova is entitled to a review of her deprivation of legal capacity; however, as the dissenting judge points out, the Court’s position about this is confusing in that it states that a court performing such a review, in the absence of new legislation, would apply the current law, even though the Court has found it unconstitutional.

The judgment can be found in Russian here and in English here. The case was brought by Ms. Irina Delova, a 49-year-old woman who was born with cerebral palsy and has an intellectual disability. MDAC’s Legal Monitor for Russia, Dmitri Bartenev, has represented Ms. Delova since 2009, when she was referred to MDAC by the NGO Perspectivy.

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